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HomeMy WebLinkAbout30-Mayors Office CITY OF SAN BERN. lDINO - REQUEST F ~ COUNCIL ACTION From: Tom Minor, Mayor Authorize execution of an agree- SU~Kt: ment with the law firm of KAY & STEVENS to provide legal advice relative to the City's exposure to litigation in connection with alle- gations of sexual harassment within thp ri~y Attnrnpy'~ nffi~p Dept: Dam: July 19, 1994 Synopsis of Previous Council action: May 23, 1994 Council authorized a Committee comprised of Council Members Curlin, Devlin and Hernandez to meet with Mayor. June 1, 1994 Council determined there was significant exposure to liti- gation pursuant to Government Code Section 54956.9 (b). June 13, 1994 -- Council authorized the retention of the law firm of KAY & STEVENS to investigate allegations of sexua] harassment within the City Attorney's Office and provide legal advice on the City's exposure to litigation. Recommended motion: Adopt resolution. ~~ Signature Contact person: Tom Minor, Mayor Phone: 5133 Supporting dam atmched: Yes Ward: FUNDING REQUIREMENTS: Amount: $20,000 Source: (Acct. No.) 629-453-53150 Liabi11ty Insurance Fund - Prof/Cont Acct. Descri tion Services (Savings in BICEP premium Finance: ~;J,/-y/~~- ::Ouncil Notes: 15-0262 Agenda Item No 30 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT staff Report Agreement with Kay & stevens Council Meeting: August 1, 1994 Page 1 On May 23, 1994, the Mayor and Council met to discuss the City's liability exposure and to take possible action on the hiring of an independent investigator in connection with the allegations of sexual harassment within the City Attorney's Office. After much discussion, the following motion was made: "Council Member Negrete amended his motion, seconded by Council Member Devlin, that Council Member Hernandez share the information he has with a Committee comprised of Council Members Curlin, Hernandez, and Devlin who would meet w~th Mayor Minor; and further that Mayor Minor check with four law firms recommended by the League of California Cities for ~he purpose of seeking information on the following: one, can the Mayor and City Council meet in closed session and exclude the City Attorney from the closed session; two, information as to whether the Mayor and Council can discuss possible litigation in closed session; three, determine if there is a statute of limitations on filing sexual allegation charges; and are there any exceptions; four, seek advice on how to proceed from this point, and any other questions that may arise: and bring the matter back to the Mayor and Council at 9:00 a.m. on Wednesday, June 1, 1994, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California." The motion carried by the following vote: Ayes: Council Members Negrete, CUrlin, Hernandez, Devlin, Pope-Ludlam. Nays: Council Member Oberhelman. Absent: Council Member Miller. The minutes of this meeting were approved by the Mayor and Common Council on July 5, 1994. On June 1, 1994, the Mayor and Common Council again met to discuss the City's liability exposure in connection with allegations of sexual harassment within the City Attorney's Office. Mayor Minor gave a synopsis of the actions taken up to that point which included retaining the services of an independent investigator, s. Joseph Simitian of the law firm of Kay and Stevens, located at 490 California Avenue, Suite 400 in Palo Alto, California. According to the June 1 minutes, Mr. Penman stated that he consented to the hiring of this law firm. At that meeting the following action was taken: "Council Member Hernandez made a substitute motion, seconded by Council Member Pope-Ludlam, that the previous action taken that the Mayor and Council adjourn to closed session to Staff Report Agreement with Kay & Stevens Council Meeting: August 1, 1994 Page 2 discuss the potential for significant exposure to litigation whether the City Attorney would be allowed to participate in the closed session pursuant to Section 54956.9, Subsection (b) of the California Government Code; and that the Council has determined that there is significant exposure to litigation pursuant to Government Code Section 54956.9 (b), be ratified. The substitute motion carried by the following vote: Ayes: Council Members Negrete, Curlin, Hernandez, Oberhelman, Devlin, Pope-Ludlam. Nays: Council Member Miller. Absent: None." The minutes of this meeting were approved by the Mayor and Common Council on July 5, 1994. At the meeting of the Mayor and Common Council held June 13, 1994, the following motion was made: "Council Member Hernandez made a motion, seconded by Council Member Curlin, that the firm of Kay & Stevens be retained to investigate allegations of sexual harassment within the City Attorney's office and to provide further legal advice on the City's exposure to litigation; and that a formal agreement, which includes a breakdown of hourly rates and expenses, be prepared by Kay & Stevens for review by the Mayor and approval by the Mayor and Council." The motion carried by the following vote: Ayes: Members Negrete, CUrlin, Hernandez, Pope-Ludlam. Council Members Oberhelman, DeVlin, Miller. Absent: Council Nays: None. The minutes of this meeting were approved by the Mayor and Common Council on July 5, 1994. In accordance with the Council's direction, attached is a copy of the formal agreement with Kay & Stevens, including a breakdown of hourly rates. It is recommended that the Mayor be authorized to execute the agreement on behalf of the City. 1 2 3 RESOLUTION NO. 4 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF AN AGREEMENT WITH KAY AND STEVENS, 5 ATTORNEYS AT LAW, FOR THE PROVISION OF LEGAL SERVICES RELATING TO ALLEGATIONS OF SEXUAL HARASSMENT IN THE CITY ATTORNEY'S OFFICE. 6 7 8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: Section 1. The Mayor is hereby authorized and directed to 9 10 Attorneys at Law, for the provision of legal services relating to 11 12 13 execute on behalf of said City an agreement with Kay and Stevens, allegations of sexual harassment in the City Attorney's Office, which agreement is attached hereto, marked Exhibit "A", and incorporated herein by reference as fully as though set forth at length. Section 2. The authorization to execute the above-referenced execute it within sixty (60) days of the passage of the resolution. 20 21 22 23 of 24 25 26 27 28 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the city of San Bernardino at a meeting thereof, held on the , 1994, by the following vote, to wit: day / / / / / / / / / / / / / / / / / / / / RESOLUTION AU~ lRIZING AGREEMENT WITH KAY 'NO STEVENS RELATING TO LEGAL SERV~_ES RELATING TO ALLEGATION5 JF SEXUAL HARASSMENT IN CITY ATTORNEY'S OFFICE. 1 2 3 Councilmembers 4 NEGRETE 5 CURLIN 6 HERNANDEZ 7 OBERHELMAN 8 DEVLIN 9 POPE-LUDLAM 10 MILLER 11 12 13 14 15 16 17 18 AYES NAYS ABSTAIN ABSENT City Clerk The foregoing resolution is hereby approved this , 1994. Approved as to form and legal content: 19 JAMES F. PENMAN 20 City Attorney 21 By: 22 23 24 25 26 27 28 day of Tom Minor, Mayor City of San Bernardino -2- AGREEMENT BETWEEN CITY OF SAN BERNARDINO AND KAY & STEVENS CITY OF SAN BERNARDINO, referred to as CITY, and KAY & STEVENS, a partnership, located at 490 California Avenue, Suite 400, Palo Alto, California 94306, referred to as SPECIAL COUNSEL, mutually agree as follows: I. BASIS OF AGREEMENT This agreement, effective June 15,1994, is entered into by and between KAY & STEVENS, and CITY OF SAN BERNARDINO. SPECIAL COUNSEL has the required background, experience, and expertise to perform the work to be done and has agreed to do so in accordance with the terms and conditions of this agreement. n. SCOPE OF THE WORK SPECIAL COUNSEL shall provide legal services as requested by the CITY, including an investigation of allegations of sexual harassment in the San Bernardino City Attorney's Office. At the conclusion of the investigation, SPECIAL COUNSEL shall provide the CITY with a written report of the results of that investigation. SPECIAL COUNSEL'S report will include legal recommendations, conclusions and strategy considerations, as well as an assessment of the CITY'S position with respect to potential liability and/or litigation. -1- Exhibit "An ill. PAYMENT The CITY shall pay SPECIAL COUNSEL an amount not to exceed twenty thousand dollars ($20,000.00) for the services described above, and including reimbursement for reasonable and necessary costs and expenses incurred in the course of performing the services identified above, including, but not limited to, traveL document preparation, document duplication, computer research, lodging, and meals. CITY shall pay SPECIAL COUNSEL for legal services at the rates specified in the attached Public Agency Fee Schedule. CITY acknowledges that the scope of work may eventually require services in excess of twenty thousand dollars ($20,000.00); but SPECIAL COUNSEL agrees that services will not be provided, nor will expenses be incurred, beyond the twenty thousand dollars ($20,000.00) limit specified above without the CITY'S express, written authorization. The CITY'S payments shall be made at the end of each month upon receipt of SPECIAL COUNSEL'S itemized invoices indicating the number of hours of service provided to the CITY and expenses incurred during the period for which a claim for payment is being made. IV. INDEPENDENT CONTRACTOR While performing services under this Agreement, SPECIAL COUNSEL is an independent contractor and not an officer, agent or employee of the CITY. V. INSURANCE SPECIAL COUNSEL and CITY shall take out and maintain during the period of this agreement such general liability, workers' compensation and vehicle insurance as is required to protect SPECIAL COUNSEL and the CITY as their interest may appear. -2- Exhibit "A" VI. HOLD HARMLESS AND INDEMNIFICATION SPECIAL COUNSEL shall hold hann1ess and indemnify the CITY, its officers, agents and employees from and against any and all actions, suits or other proceedings which may arise as a result of performing the work under this Agreement, except such actions, suits or other proceedings as may arise as a result of the negligence or willful misconduct of the CITY, its officers, agents and employees. CITY shall hold harmless and indemnify SPECIAL COUNSEL, its officers, agents and employees from and against any and all actions, suits or other proceedings which may arise as a result of performing the work under this Agreement, except such actions, suits or other proceedings as may arise as a result of the negligence or willful misconduct of SPECIAL COUNSEL, its officers, agents or employees. VII. This agreement is effective June 15, 1994, is ongoing and may be modified by mutual agreement of the parties. This agreement may be terminated by either party upon 30 days written notice. KAY & STEVENS CITY OF SAN BERNARDINO By By Date-rI Dater! -3- Exhibit "A" FEES AND CLIENT CONTRACTS - PUBLIC AGENCIES (Hourly Rates) Partners Associates Employee Relations Specialist Senior Paralegal Paralegals $165.00 - 185.00 $145.00 - 155.00 $100.00 $70.00 $50.00 -4- Exhibit "A"